Intellectual property war tied to gambling

What you need to know:

  • Access to sports data and geolocation technology is essential for bookmakers seeking to offer sports gambling.
  • Gambling companies handle a lot of personal and sensitive data from their customers, which needs to be protected.

'Betting through M-Pesa exceeds Sh83 billion in half-year,’ Business Daily reported on November 11. Sports law, intellectual property law, and data protection are all being redefined as a result of this sports mania and its licensing.

Thus, contract talks are becoming more complicated and require parties to weigh in on a growing number of sensitive topics. In these rapidly changing circumstances, the wagering business has shone a bright light on data protection compliance and intellectual property rights.

Access to sports data and geolocation technology is essential for bookmakers seeking to offer sports gambling. But what is sports game data? This is “the nitty-gritty" of what's going on in the game — the lifeblood of sports betting, possibly the most important and lucrative aspect of the entire industry; and sports bookies accept bets on.

It is both proprietary and personal and sports actors (teams, leagues, federations and unions) have claimed ownership over it, for commercial interests.

As a result, the security and utilisation of this private game data is critical to the integrity of regulated sports betting.

Gambling companies handle a lot of personal and sensitive data from their customers, which needs to be protected. While signing up, gamblers are required to provide date of birth, phone number, physical and email addresses, financial and banking information, names, identification numbers, location data, IP addresses... along with passwords and security questions and other personal and sensitive identifying information.

As this nascent gambling industry unfolds, patents will undoubtedly be sought for a variety of betting applications. And trade secrets will provide a chance for sports actors to collaborate with sportsbooks on data exchange, while technology transfer will allow for the introduction of technologies to the market.

Conversely, infringement from the aforementioned will be the unlikely source of litigation but rather trademarks, copyrights and data compliance.

Valuable asset

With the world's insatiable thirst for data, data generated by sports actors is a valuable intellectual property asset. For this reason, sports actors contend that they have an essential interest in how their games are perceived and the degree to which their sporting events become betting events.

An essential legal question, yet to be fully resolved, is whether the rights holders whose games generate the data may commercialise proprietary rights, and protect “their” data from unauthorised use.

Gambling involves the use of sports actors’ games, scores, statistics and team logos, in order to take advantage of a particular league’s popularity, such usage may be a violation of a variety of property rights.

But who owns the data gathered during a sporting contest? Is it possible to copyright it? What can be done with the information?

Games or statistics that underpin sports betting do not deserve copyright. Because copyright does not protect the practice or the gameplay itself as it is not a work of authorship or a scripted performance as contemplated under the Copyright Act.

It also doesn't protect a basic recital of facts or a simple summary of player performance data without more.

Facts, on the other hand, are only protected if they are chosen, coordinated, or structured in such a way that the finished product contains enough original creativity to be considered a work of authorship.

This suggests that in order to constitute work of authorship, factual data need more data. As a result, the law does not uphold sports actors' claims to sole ownership of intellectual property.

In lieu of this, and to safeguard their intellectual property rights, sports actors might consider keeping their factual data points private by implementing methods to protect them and requesting copyright protection for the analysis that results.

Thus, when entering into data licensing agreements with analytics firms, the information should be kept private. Further, sports actors may negotiate for the ownership or exclusive licence of the copyright over the analysis as well as preparation of derivative works.

In a nutshell, sports actors should consider the possible impact of the burgeoning sports betting sector on their present and future intellectual property assets created by and connected to their athletic activities, since it is an area of operations that will only continue to grow in complexity.

Mutua K Mutuku, Data compliance and intellectual property law expert

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